UNETHICAL PRACTICES LAWSUIT (RE: 1-800-411-PAIN et al)

UNETHICAL PRACTICES, Re: 1-800-411-PAIN, Truman Injury, and Sergio Triana vs. The Board members of the Minnesota Board of Chiropractic Examiners

Recently, the Legislature amended a law [M.S. 65B.54, Subd. 6(d)(1)-(3), (5), and (6)] related to personal injury insurance. This law has become the subject of a constitutional challenge and request for injunction filed in Federal Court to prevent or modify this law’s implementation. Driving the suit, was 1) the fact that the licensing authorities (i.e. the Boards) were empowered to take disciplinary action against a licensee who violated the law, and 2) the law was to go into effect on January 1, 2013. In summary, the amendments to the law dictated that solicitations for advertisement must:

Be undertaken only by or at the direction of a health care provider;

Prominently display or reference the legal name of the health care provider;

Display or reference the license type of the health care provider, or in the case of a health care provider that is a business entity, the license type of all of the owners of the health care providers (without needing to list all the names of the providers);

Not include any reference to the dollar amounts of the potential benefits under this chapter, and;

Not imply endorsement by any law enforcement personnel or agency.

In a decision issued on December 28, 2012, Judge Susan Nelson denied plaintiff’s motion for an injunction. This means that this law currently remains in effect, and the above conditions must be met. Doctors of chiropractic are advised to be aware of the conditions of this statute, and comply accordingly with all advertising requirements, including these.

FEE SPLITTING - USE OF "COUPONS"

It has come to the attention of the Board that certain forms of advertising/marketing may place the licensee at significant risk of being in violation of the laws related to fee-splitting. Licensees should remember that certain forms of conduct that are available to the general public may be inappropriate or impermissible for use by health care professionals. One such form of advertising/marketing is exemplified by online batch-offer companies, such as Groupon and Living Social. The structure currently utilized by these and similar companies is simply not appropriate for doctors of chiropractic, as it constitutes “Fee splitting,” which is prohibited by the practice act.

The structure referred to here is:

A member of the public receives an online offer for discounted chiropractic services from a non-chiropractor company.

This member of the public purchases this service from the non-chiropractor company. In this case, we’ll say the service is advertised for $40, by way of example. This full $40 is paid to the non-chiropractor company by the prospective patient, who then receives a certificate for the service.

Of the $40 paid by the patient, the company keeps $20, and gives the doctor $20.

The patient then provides the certificate to the doctor, and receives the specified service.

This structure, while perhaps permissible for the general public, is simply prohibited by the chiropractic (and other) practice acts, as it constitutes fee splitting. This derives from the fact that the company is getting paid on a per-person basis for referral of patients. The doctor in this scenario is, quite literally, splitting his/her fee with an unlicensed third party. Licensees are strongly cautioned to avoid any marketing situation in which any third party receives compensation that is in any manner tied to the number of referrals made.

STANDARDS OF CARE

It has come to the attention of the Board,that licensees may, at times, deliver less than standard care as a result of financial considerations or undue influence from third party payors. Neither the clinical judgment of the doctor, nor the quality of care should be improperly influenced by persons or organizations other than the doctor delivering the care. As a practical matter, the doctor should offer the patient the appropriate level of care, and allow the patient to decide what level of care they wish to receive based upon their circumstances, including financial considerations. If a patient declines to receive care that the doctor deems necessary, the doctor may wish to consider whether he/she is able to continue treating the patient at an acceptable standard of care.

Doctors who fail to provide, or at least offer, care at a level consistent with the community standard may find themselves in violation of the practice act and subject to disciplinary sanctions, or separately subject to malpractice actions.

APPLICATION OF REHABILITATIVE SERVICES

Questions have come up recently about the connection between chiropractic care and therapies commonly referred to as “rehabilitative” or “adjunctive” therapies. These may include, by way of example, ultrasound, cryotherapy, nutritional counseling, acupuncture (for those properly registered), exercise, traction, or other similar therapies, as described in more detail at https://www.revisor.leg.state.mn.us/rules/?id=2500.0100.

The Board does not interpret this statute to mean that such therapies must be delivered on the same day as an adjustment, or even by the same chiropractor who delivered the adjustment. In fact, there are occasions when delivering such a therapy on the same day as the adjustment may be dangerous to the patient, and it is up to the doctor to utilize careful clinical judgment when utilizing rehabilitative therapies proximate to the delivery of chiropractic care. Doctors are reminded, however, that they may be required to defend such decisions before the Board when the delivery of such therapies is so remote in time or relation to chiropractic adjustment that a clinical connection becomes difficult to determine.

ACUPUNCTURE RENEWAL CYCLE

The Board’s continuing education (CE) audits have caused some confusion regarding the CE cycle. The registration for acupuncture registrants runs from September 16 to September 15 of the next year, and must be renewed by September 15 of each calendar year. Acupuncture registrants are required to obtain 2 CE credits in acupuncture related subjects each calendar year. (This emphasized language is very important.)

Upon LICENSE renewal (by December 31 of each calendar year) you must state that you have completed your CE credits for that calendar year. If you have an acupuncture registration, this includes these additional 2 credits. By way of example, some people have taken acupuncture credits in August of 2012, renewed their acupuncture registration in September of 2012, and then taken more acupuncture credits in November of 2012, thinking that this last group applies to the NEXT acupuncture registration cycle. THIS IS INCORRECT. All acupuncture credits taken in 2012 apply only to 2012...and the same is true of any other calendar year. Frankly, it doesn’t matter when, in 2012, the credits are taken. You are not stating on your acupuncture renewal application that you have taken these credits. This statement occurs ONLY on the DC license application, due by 12/31 of each year. The acupuncture renewal application merely asks if you understand that you must take these credits in each calendar year. For a list of required courses and due dates, please go to http://www.mn-chiroboard.state.mn.us/CE_Schedule.htm.

PRE-PAY PLANS

The Board has adopted rules for the establishment and maintenance of "Pre-Pay," plans for chiropractic care. To summarize, the rules require:

This only applies to accounts where the doctor accepts $1000 or more as advance payment from one or more patients;

The doctor must provide a written plan with a copy to the patient;

The plan must include a written description of reimbursement policies;

The plan requires notification to the patient when funds for their plan have been exhausted;

Each plan must be limited to 50 visits, although the plan may be renewed as often as necessary;

A doctor using such plans must have a separate escrow account into which these monies must be deposited, and must keep an accounting of disbursements;

The doctor can only move money from the escrow account into their operating accounts as the services are actually rendered. In other words, the doctor may not spend money that has not actually been earned by the provision of clinical services;

There is a 3 day right of rescission for any person entering into such a plan.

This should not be considered an exhaustive list of the requirements. For the actual language of the prepay rules, please click on the link. (For a copy of the most current set of statutes and rules related to chiropractic, please click on the Statutes and Rules link and select those of interest to you.) If you have questions regarding the rules, you are encouraged to discuss them with your own private counsel.

AUTHORITY OF CHIROPRACTORS TO PERFORM CERTAIN PHYSICAL EXAMS

In the mid 1990's, there was considerable controversy over the authority of doctors of chiropractic to perform certain types of examinations (e.g. truck driver physicals, bus driver physicals, and high school physicals.) This started with a narrowly focused opinion from an Attorney General representative giving an opinion to a state agency. The Board of Chiropractic Examiners took exception to this opinion, and requested a fully researched opinion (through Legislative research) to more fully explore this question. Over the next few years, this resulted in 3 opinions, all clarifying the broad authority of chiropractors to conduct these physical exam, with only a few, very narrow limitations (e.g. exams may not be done via invasive procedures, and X-rays were limited to the bones of the skeleton.) The three opinions were, in short, 1) the fully researched opinion by Robert Holley, Assistant Attorney General (2/21/1995); 2) a clarifying/confirming opinion by Lucinda Jesson, Deputy Attorney General, (4/28/1997); and finally a similar opinion regarding bus drivers physical exams from Alan Klein, Administrative Law Judge (Confirmed by Chief Administrative Law Judge Kenneth Nickolai) in January, 1998. Finally, Governor Jesse Ventura directed "the Departments of Transportation and Public Safety to follow the advice of the Attorney General and accept chiropractor's signatures." These opinions are available for review and download.

NEW INFORMATION AS OF 1/2013: As of May 21, 2014, no chiropractor will be eligible to perform Commercial Motor Vehicle carrier examinations (those operating trucks or buses for commercial purposes unless/until they have passed an examination approved by, and registered with, the National Registry of Certified Medical Examiners. For more information, please go to: http://www.nrcme.com/ or http://www.fclb.org/Portals/7/DOT/DOT%20NRCME%20exams%2012-3-2012.pdf

CAN DOCTORS OF CHIROPRACTIC UTILIZE MOBILE MRI's?

Recently, the Board has been asked multiple questions regarding the permissibility of performance of Mobile MRI’s for patients of doctors of chiropractic. The difficulty in answering such questions lies not in the general notion of whether mobile MRI’s are authorized, but in the very many permutations under which this may occur. It is not necessarily the performance of an MRI from a mobile location which may be impermissible, but any of a number of other variables which may render such activity as improper. Therefore, the Board takes no general position on the permissibility of the performance of mobile MRI’s. Rather, when considering a complaint, the Board would consider all such issues on the merits of the individual situation.

Those doctors who may be using mobile MRI’s may ask themselves the following questions as a guide to whether they may be treading into dangerous territory:

Might your use of the mobile MRI facility in any way influence whether or not you order such procedures for your patients? In other words, are you ordering more procedures than you would ordinarily, just because the facility is mobile?

Is/are there clear clinical indicators for medical necessity?

Does the mobile facility require that you have a certain number of patients before they will come to your location?

Does the facility pay you, or in any manner provide you with a financial or other benefit by coming to your location?

Are they giving you a certain dollar amount for each patient? Are they paying you “rent” for the parking lot space?

*** If they are, do you even have authority to rent parking lot space? In other words, to you own the building/parking lot?

Are they paying you “rent” for any other office space or staff services?

*** If so, on what basis did you make the calculations to determine the fair market value of this rental?

What is the demonstrable benefit of using the mobile MRI over using another community location?

Is there a local facility available which would perform MRI’s for you?

This is not meant to be an exhaustive list of questions you should be pursuing. These are simply the more common issues seen by the Board. You are strongly advised to seek legal consultation in any situation in which you may be considering such an option.

SPECIAL NOTE: It has come to the attention of the Board, that some doctors are being shown Board letters, in which cases have been dismissed. DO NOT BE MISLED INTO BELIEVING IN ANY WAY, that this represents a policy or stance of the Board. Any such letter is very specific to an individual recipient, and may merely represent a lack of sufficient evidence to pursue that particular case. Each case will be considered individually on its own merits, and with whatever evidence is available at the time.

LICENSING SURCHARGE

The Minnesota Office of Enterprise Technology (OET) recently sponsored and the Minnesota Legislature passed legislation requiring a 10% surcharge of no less than $5.00 and no more than $150 on EACH business, commercial, professional, or occupational license. The funding from this will go to OET, which will establish an electronic licensing system for the state.

THIS SURCHARGE IS NOT A LICENSE FEE, HAS NOTHING TO DO WITH THE BOARD OF CHIROPRACTIC, AND IS NOT MANAGED BY THE BOARD EXCEPT FOR ITS COLLECTION. Additionally, this surcharge applies ONLY to licenses, and does not apply to registrations, such as Professional Firms, Acupuncture, Animal Chiropractic, Independent Examiners, etc.

Also, THIS FEE WILL BE CHARGED WHETHER YOU RENEW ONLINE OR BY PAPER RENEWAL.

FELONY LEVEL CRIMINAL SEXUAL CONDUCT CONVICTIONS

The 2010 Legislature established new language for either applicants, or currently licensed doctors of chiropractic who have been convicted of criminal sexual conduct. In short, if such behavior occurred with a patient, this chiropractor must be revoked and may never be reinstated. If such conduct occurred with a non patient, they may have an opportunity to reinstate their license provided certain conditions are met. The language of the bill may be found here.

AG and Board Join in Fraud Civil Suit

On August 12, 2009 and on November 24, 2009, the Attorney General and the Board jointly filed civil suits in the District Court of the First Judicial District, for what is deemed to be the improper use of Health Care "Credit Cards." by two separate doctors of chiropractic. Please click here for a copy of the filing against Cory Couillard, DC, or against Erik Okeson, DC.

RUNNERS AND CAPPERS

Effective as of August 1, 2008, it will be illegal, and grounds for revocation, to make any direct contact “in person, by phone, or by other electronic means, with any person who has suffered an injury arising out of the maintenance or use of an automobile, for the purpose of influencing that person to receive treatment or to purchase any good or item from the licensee or anyone associated with the licenses...” This includes contact by the licensee or any third party operating on behalf of the licensee. For more information on this see the text of the Bill.

PROVIDER COST DISCLOSURE

Several years ago, a law was enacted requiring that all health care providers list their 50 most common services and include the average allowable payments for those services, and to have this list readily available to consumers (patient). (M.S. 62J.052, Subd. 1) This law (shown below) was repealed in 2007 (Session Laws 2007 Ch. 147, Art. 15, Sec. 22)…accordingly, no such list is required any longer.

DECOMPRESSION THERAPY

The Board has received a significant number of inquiries lately regarding decompression therapy. The Board has not currently taken a position with regard to this procedure. However, new on the scene is a superior court decision regarding the false advertising of this therapy, as well as a number of Board actions from other states. The Board will be reviewing these decisions and may incorporate them into any complaints received regarding such advertising. Follow links below to receive copies of the original decisions.

OWNERSHIP OF CHIROPRACTIC PRACTICES

Pursuant to a Minnesota Supreme Court decision, (September 15, 2005), the corporate ownership of chiropractic practices and employment of chiropractors MUST occur through a licensed chiropractor. This is known as the "Corporate Practice of Medicine Doctrine." There are certain exceptions, such as HMO's and hospitals.) In this decision, the Supreme Court cited a previous Iowa Supreme Court decision which discussed the notion of "learned professions." The Minnesota Supreme Court applied this concept to it's decision regarding the profession of chiropractic. (Interestingly, in this same decision, the Supreme Court also held that this doctrine did not apply to the professions of Physical Therapy, or Massage Therapy.) You may view or download the actual text of the decision.

FEE SCHEDULES

Pursuant to Legislation occurring in the 2007 Legislative session, doctors of chiropractic may now accept any fee from persons or groups they deem appropriate under the circumstances. It appears that this means they can accept different fees from different persons even for the same services. This does not allow doctors of chiropractic to ignore or forgive payments related to insurance deductibles or co-pays. The text for this Legislation can be found in it's original form in Minnesota Session laws, 2007, Chapter 123, but is included with this link. It is most appropriately understood from the perspective of the language which was removed from the practice acts original language. (See strikeouts for removed language.) Please consult with your attorney if you have questions regarding this change.

FREE OR DISCOUNTED SERVICES

As a result of a legislative error in 2007, a rule was deleted in it's entirety. The actual intent of this deletion was to allow doctors of chiropractic to accept any amounts in payment for their services as a result of another law that was passed. However, the Legislature inadvertently deleted the entire portion of the rule rather than just the relevent portion. Therefore, as a result of a Legislative repair in 2008, the following language has been reinstated: